that the cestui que trusts could pursue the bond and mortgage in the hands of the assignee, for the reason that the pendency of the suit against the trustee by whom the assignment was made, was notice to all the world. The learned Chancellor, in rendering the opinion, says: "If W. (the trustee), had held a number of mortgages and other securities, in trust, when the suit was commenced, it cannot be pretended that he might safely defeat the object of the suit, and elude the justice of the court by selling these securities. If he possessed cash as the proceeds of the trust estate, or negotiable paper not due, or perhaps movable personal property, such as horses, cattle, grain, etc., I am not prepared to say, the rule is to be carried so far as to affect such sales." $372. Does not Affect Negotiable Paper. The above declaration of this doctrine is sufficiently indicative of the kind of chattels which may be affected by litigation with respect thereto, against the legal owner. The cases are numerous in which it has been decided that negotiable instruments, by whatever form of action it is sought to subject them to adverse claims, cannot be affected in the hands of bona fide purchasers who acquire them before maturity.1 §373. Peculiar Kind of Property. In exceptional cases decided with reference to property of a peculiar kind, and which was necessarily governed by peculiar laws, the doctrine has been applied, but as this species of property no longer exists, the principle governing such cases can hardly be applied with safety to sales of chattels, the proprietary interest in which does not depend upon local statutes. § 374. Statutory Provisions. In some of the states of the Union, and in England, there have been statutory provisions enacted, which materially simplify the operation of a lis pendens, for the reason that in order to affect a party with constructive notice of the pendency of a suit, there must be a 'Day v. Zimmerman, 68 Penn. St., 72; Goodman v. Simonds, 20 How., 343; Mines v. West, 38 Ga., 18; Winston v. Westfeldt, 22 Ala., 760; Hill v. Kroft, 29 Penn. St., 186; Kellogg v. Fancher, 23 Wis., 21. ร noitce of such suit filed with the officer, whose duty it is to register conveyances of real estate. These statutes provide in substance that from the time of such filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby, and hence are regarded as substitutes for Lord Bacon's rule, but not as having the effect to modify the rule that one purchasing with actual notice of the litigation, will be bound by the decree.2 $375. Purchaser not Affected Personally. This rule being only applicable to suits which are in their nature, actions in rem, the judgment rendered will not bind the purchaser, personally, but will only affect the property or interest which is the subject of litigation. §376. Statute of Limitations does not run During Suit. During the progress of a suit involving the title to real estate, where the doctrine of lis pendens is applicable, the statute of limitations will not run in favor of the purchaser, so as to defeat the operation of the rule.3 $377. Purchaser at Execution Sale. Those who purchase at an execution sale will be affected in the same manner as purchasers directly from the defendant, when the action upon which the execution is based has been commenced subsequent to that in which the title to the property is litigated.* 'Richardson v. White, 18 Cal., 102; Bensley v. Mountain Lake Water Co., 13 Id., 306; Head v. Fordyce, 17 Id., 149; Ault v. Gassaway, 18 Id., 205. *Turner v. Babb, 60 Mo., 342; Stoddard v. Myers, 8 O., 203; Scott v. Col. man, 5 Monr., 73; Pindall v. Trevor, 30 Ark., 249. CHAPTER III. NOTICE BY WHICH CERTAIN LIABILITIES ARE CREATED. I. NOTICE OF ACCEPTANCE OF PROPOSALS. II. NOTICE OF GUARANTY, III. NOTICE OF ASSIGNMENT. IV. NOTICE TO CARRIERS AND OTHER BAILEES. I. NOTICE OF ACCEPTANCE OF PROPOSALS. § 378. Continuing and Limited Offers. 379. Necessity of Notice. 380. Time. 381. Offer by Auctioneer. 382. Notice may be Oral or Written. 383. By Mail. 384. Continuing until Accepted, Rejected or Withdrawn. 385. Withdrawal by Mail. $379. Continning and Limited Offers. One of the necessary ingredients of every contract, and the one which is first in point of time, is the proposal or offer made by the one party to the other. And when such offer is made without express limitation as to the time of its acceptance, it will be regarded as a continuing offer for a reasonable time, or until accepted or withdrawn. When accepted, it ceases to be an offer, because it has then ripened into a contract. When withdrawn, the matter in negotiation is at an end. When the time for acceptance is expressly limited by the proposer, which it is always within his power to do, the proposal falls to the ground '1 Pars. on Cont., 403, and cases cited; B. & M. L. Ry. Co. v. Unity, 62 Me., 148. at the expiration of that time, unless sooner accepted or withdrawn.1 $379. Necessity of Notice. -It is not sufficient to constitute a binding contract between the parties, that one of them makes a proposal, which is communicated to the other, and that other secretly resolves in his own mind that he will accept the offer made; nor is it even sufficient that he openly declares his acceptance, unless that fact be communicated by him to the party making the proposal. In other words, there must be notice of the acceptance from the accepter to the proposer.2 $380. Time. The time within which such notice must be given, in order to create a liability against the proposer, will largely depend upon the subject matter of the contract, and the conduct of the parties to the negotiation. Of course, if the offer be rejected, a subsequent notice of acceptance would be of no avail. It has even been laid down by very high authority, as the general doctrine upon this subject, that if the party to whom the offer is addressed "goes away, and returns the next month, or the next week, and says he will accept the proposition, he is too late unless the proposer assents in his turn. So it would be, probably, if he came the next day, or the next hour; or, perhaps, if he went away at all and afterwards returned." 3 § 381. Offer by Auctioneer. Where goods are offered for sale at auction, a bidder is regarded as making an offer or proposal to purchase at the price mentioned in his bid. The offer to be binding upon him must be accepted before he withdraws it, for until accepted it is of no force. When, however, another bid is made, and cried by the auctioneer this may be regarded by the first bidder as an unequivocal rejection of his proposal, which cannot again become the subject of acceptance unless the latter bid be withdrawn and the former is renewed." 11 Pars. on Cont., 405 Benjamin on Sales, § 39 et seq. 31 Pars. on Cont., 404. 4 Payne v. Cave, 3 T. R., 148. § 382. Notice may be Oral or Written. Unless the offer stipulates for notice of acceptance in writing, such notice may be given in any manner in which information may be communicated. It may be given, either orally or in writing; and when by the latter mode may be despatched by a private messenger, by the post, or may be by telegraph.1 2 $383. By Mail. When the negotiations are carried on between the parties by mail, unless otherwise stipulated by the proposer, the contract will be complete from the date of depositing the notice of acceptance in the post office; notwithstanding during the time intervening between the posting of the notice, and its receipt by the one who makes the offer, the latter may have concluded to withdraw the proposition. As in the case cited a purchaser offered a certain price for an estate, which the vendor accepted by post. The letter announcing the vendor's acceptance of the proposal was received by the party making it, the day after it was sent. Here it was held that the vendor was bound by the contract from the time of posting his letter of acceptance, for the reason that the notice intended to announce to the purchaser, the concurrence on the part of the vendor, had gone beyond his recall. 3 $384. Continuing until Accepted, Rejected or Withdrawn. It has been held otherwise in this country in several instances,* but the weight of authority in the United States as well as in England is decidedly in favor of the rule announced above. It seems also to be the only position on the question that is tenable, upon principles of sound reason. The offer must be regarded as continuing until accepted, rejected or withdrawn. So long as it continues it is at the disposal of the party to 'Deshon v. Fosdick, 1 Woods, 286; Schonberg v. Cheny, 6 Thomp. & C, (N. Y.), 200; S. C., 3 Hun., 677. 2 Potter v. Sanders, 6 Hare. 1. See also, Brisban v. Boyd, 4 Paige, 17; Averill v. Hedge, 12 Conn., 424; Mactier v. Frith., 6 Wend., 103; Levy v. Cohen, 4 Ga., 1; Childs Nelson, 7 Dana, 281; Hamilton v. Lycoming Mut. Ins. Co., 5 Penn. St., 339; Dunlop v. Higgins, 1 H. L. Cas., 381; Story on Sales, $$ 129, 130, and cases cited. McCulloch v. Eagle Ins. Co., 1 Pick., 278; Gillespie v. Edmonston, 11 Humph., 553 |